Shalkhauser v. Medina, 3238-M.

• Court: United States Court of Appeals (Ohio)
• Citation: 2002 Ohio 222,148 Ohio App.3d 41,772 N.E.2d 129
• Decision Date: 16 January 2002
• Docket Number: No. 3238-M.,No. 3249-M.,3238-M.,3249-M.
• Parties: SHALKHAUSER, Appellant, v. CITY OF MEDINA et al., Appellees.<SMALL><SUP>*</SUP></SMALL>

772 N.E.2d 129

148 Ohio App.3d 41

2002 Ohio 222

SHALKHAUSER, Appellant, v. CITY OF MEDINA et al., Appellees.^*

No. 3238-M.

No. 3249-M.

Court of Appeals of Ohio, Ninth District, Medina County.

Decided January 16, 2002.

David J. Guidubaldi acid Cathleen M. Bolek, Cleveland, for appellant.

Edward G. Kagels and Patrick M. Foy, Cleveland, for appellees.

Stanley Green, Cleveland, for third-party appellee Metrohealth Medical Center.

WHITMORE, Judge.

{¶ 1} Plaintiff-appellant Paul Shalkhauser has appealed from a judgment of the Medina County Court of Common Pleas that granted summary judgment in favor of defendants-appellees city of Medina and Medina City Police Officer Daniel K. Getto. This court affirms.

I

{¶ 2} At approximately 1:20 a.m. on May 27, 1999, Officer Getto was driving his marked police cruiser west on West Smith Road in Medina. Driving west in front of Officer Getto was a pickup truck, which, it later came to be known, was being operated by Michael J. Leach. Officer Getto observed that as the pickup truck in front of him crossed over railroad tracks, it veered left of the centerline of West Smith Road and into the eastbound lane, and returned to the westbound lane.

{¶ 3} Officer Getto entered the license number of the pickup into his onboard computer, from which he learned that there was an outstanding arrest warrant for the owner of the vehicle, Mr. Leach. Officer Getto decided to initiate a traffic stop and activated his overhead flashing lights. Instead of stopping, Leach swerved left of center and accelerated past the car in front of him in an attempt to flee from Officer Getto. Officer Getto then activated his siren and pursued Leach.

{¶ 4} The Medina Police Department had a fresh-pursuit policy in effect at the time of the pursuit. In compliance with this policy, Officer Getto established radio communications with his shift commanding officer, Sergeant Horton. Also pursuant to the policy, Sergeant Horton assumed a supervisory role over the pursuit via radio communications with Officer Getto. Other members of the Medina Police Department joined Officer Getto in the pursuit of Leach in response to Sergeant Horton's request, and county sheriff's officers also rendered assistance.

{¶ 5} The pursuit continued for approximately eleven minutes, sometimes at speeds in excess of eighty-five miles per hour. The pursuit ended when Leach's pickup collided with a vehicle driven by appellant. Appellant sustained severe personal injuries as a result of this collision.

{¶ 6} Appellant filed an action against the city of Medina and Officer Getto, as well as a John Doe defendant. Appellant's complaint alleged that the defendants' conduct constituted gross negligence and/or willful, wanton, or malicious misconduct, which proximately caused his injuries. Appellees moved for summary judgment on the bases that they were statutorily immune from liability and that they did not proximately cause appellant's injuries.

{¶ 7} The trial court granted appellees' motion for summary judgment. Appellant then filed a "motion for reconsideration" with the trial court, asserting that an Ohio Supreme Court decision issued after the entry of summary judgment for appellees "called the constitutional validity of [sections of the Political Subdivision Tort Liability Act] into question." The trial court denied appellant's motion. Appellant has appealed from the denial of both motions, asserting three assignments of error which this court has rearranged to facilitate review.

II

{¶ 8} Pursuant to Civ.R. 56(C), summary judgment is proper if "(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 364 N.E.2d 267. Appellate review of a lower court's entry of summary judgment is de novo, applying the same standard used by the trial court. McKay v. Cutlip (1992), 80 Ohio App.3d 487, 491, 609 N.E.2d 1272. The party seeking summary judgment initially bears the burden of informing the trial court of the basis for the motion and identifying portions of the record demonstrating an absence of genuine issues of material fact as to the essential elements of the nonmoving party's claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. The movant must point to some evidence in the record of the type listed in Civ.R. 56(C) in support of his motion. Id. Once this burden is satisfied, the nonmoving party has the burden, as set forth in Civ.R. 56(E), to offer specific facts showing a genuine issue for trial. Id. The nonmoving party may not rest upon the mere allegations and denials in the pleadings but instead must point to or submit some evidentiary material that shows that a genuine dispute over the material facts exists. Henkle v. Henkle (1991), 75 Ohio App.3d 732, 735, 600 N.E.2d 791.

Assignment of Error Number Three

{¶ 9} "The trial court erred in holding that defendants are immune from liability."

{¶ 10} In his third assignment of error, appellant has argued that R.C. Chapter 2744, regarding statutory immunity of political subdivisions, violates Sections 5 and 16, Article I of the Ohio Constitution. Appellant has contended that R.C. Chapter 2744 violates, respectively, his fundamental right to trial by jury and his right to a remedy for injuries by due process of law.

{¶ 11} Appellant did not contest the constitutionality of R.C. Chapter 2744 at the trial court in his memorandum in opposition to appellees' motion for summary judgment.¹ Rather, appellant first raised the issue in a "motion for reconsideration" filed with the trial court after final judgment had been rendered on appellees' motion for summary judgment. A motion for reconsideration of final judgment in the trial court, however, is a nullity. Pitts v. Dept. of Transp. (1981), 67 Ohio St.2d 378, 379, 21 O.O.3d 238, 423 N.E.2d 1105. Appellant's failure to timely challenge the constitutionality of the statute in the trial court constitutes a waiver that bars appellant from raising the issue on appeal. Howard v. Seidler (1996), 116 Ohio App.3d 800, 815, 689 N.E.2d 572, appeal not allowed (1997), 78 Ohio St.3d 1494, 678 N.E.2d 1230, citing State v. Smith (1991), 61 Ohio St.3d 284, 293, 574 N.E.2d 510, certiorari denied (1994), 512 U.S. 1246, 114 S.Ct. 2768, 129 L.Ed.2d 882. Appellant's third assignment of error is without merit.

Assignment of Error Number Two

{¶ 12} "The trial court erred in finding that no genuine issues of fact remain to be decided by the jury."

{¶ 13} In his second assignment of error, appellant has argued that the trial court erred in granting summary judgment in favor of appellees because there existed genuine issues of fact regarding whether appellees were immune from liability pursuant to R.C. 2744.02 and R.C. 2744.03. Appellant has contended that whether appellees' conduct was willful or wanton, as well as the issue of proximate cause, should have been submitted to a jury. However, "just because a particular element of a claim or defense involves a question of fact does not automatically preclude the claim or defense from a determination under summary judgment. The inquiry under summary judgment is whether the moving party has demonstrated the absence of a genuine issue of material fact and, if so, whether the nonmoving party has responded with evidence demonstrating the existence of a genuine issue of material fact." Wagner v. Heavlin (2000), 136 Ohio App.3d 719, 730, 737 N.E.2d 989. See, also, Lewis v. Bland (1991), 75 Ohio App.3d 453, 599 N.E.2d 814; Jackson v. Poland Twp. (Sept. 29, 1999), Mahoning App. Nos. 96 C.A. 261, 97 C.A. 13 and 98 C.A. 105, 1999-Ohio-998, 1999 WL 783959 (each affirming summary judgment where no genuine issue of fact existed as to whether police officer's conduct during high-speed pursuit proximately caused third party's injuries).

City of Medina's Liability

{¶ 14} Determining whether a political subdivision is immune from liability requires a three-tier analysis. Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28, 697 N.E.2d 610. The starting point is the general rule that political subdivisions are immune from tort liability:

{¶ 15} "For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function." R.C. 2744.02(A)(1).

{¶ 16} At the second tier, this comprehensive immunity can be abrogated pursuant to any of the five exceptions set forth at R.C. 2744.02(B). Finally, immunity lost to one of the R.C. 2744.02(B) exceptions may be reinstated if the political subdivision can establish one of the statutory defenses to liability. Cater, 83 Ohio St.3d at 28, 697 N.E.2d 610.

{¶ 17} Applying this three-tiered analysis to the instant case, we begin with the general rule that the city, as a political subdivision, is immune from liability for the acts or omissions of its employees in connection with a governmental or proprietary function. R.C. 2744.02(A)(1). Moving to the second tier, the only exception to this immunity relevant to the present case is set forth at R.C. 2744.02(B)(1):

{¶ 18} "Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent operation of any motor vehicle by their employees upon...